929 F.

2d 974

55 Fair Empl.Prac.Cas. 1092,

56 Empl. Prac. Dec. P 40,677
Edith E. McNAIRN, Plaintiff-Appellant,
v.
Louis W. SULLIVAN, Secretary of Health & Human Services,
Defendant-Appellee.
No. 89-1792.

United States Court of Appeals,

Fourth Circuit.
Argued May 11, 1990.
Decided April 1, 1991.
As Amended May 6, 1991.

Maurice Baskin, Venable, Baetjer, Howard & Civiletti, Washington, D.C.,

for plaintiff-appellant.
Timothy M. White, Office of the General Counsel, U.S. Dept. of Health
and Human Services, Washington, D.C., for defendant-appellee.
Before WIDENER and PHILLIPS, Circuit Judges, and SMITH, Senior
United States Circuit Judge for the Federal Circuit, sitting by designation.
SMITH, Senior Circuit Judge:

Introduction
1

Edith McNairn was denied a promotion and subsequently terminated from her
employment with the United States Department of Health and Human Services
("HHS"). She filed an action alleging that HHS violated Title VII of The Civil
Rights Act of 1964.1 The complaint comprises counts of refusal to promote
based on discriminatory treatment and disparate impact, discriminatory
termination and retaliatory termination. The magistrate judge found that there
was no discriminatory motive involved in the HHS's employment decisions,
and the United States District Court for the District of Maryland entered the

order upon the magistrate judge's recommendation. On appeal, McNairn asserts

that the magistrate judge's findings are clearly erroneous.
Facts
2

McNairn, plaintiff-appellant, was employed as a clerk/typist in the early 1980s

in the Office of Equal Employment Opportunity and Civil Rights ("EEOCR")
of the Food and Drug Administration ("FDA") of the United States Department
of Health and Human Services ("HHS"). Her employment with EEOCR
commenced pursuant to a Memorandum of Understanding signed by the FDA
on July 1, 1982. The memorandum resolved plaintiff's earlier complaint of
racial discrimination filed against the Bureau of Veterinary Medicine of the
FDA for refusing to extend her temporary appointment. The agreement
specified that plaintiff's appointment was extended for thirty days and that her
performance would be evaluated by the EEOCR Director, Marshall Ford.
Acceptable performance by plaintiff would result in extension of the temporary
appointment or placement in a suitable position. The appointment was extended
until October of 1982, and then again until October of 1983.

Plaintiff started work for the EEOCR at the grade level of GS-3. In May of
1982, plaintiff received a Notice of Rating, based on self-certification, that she
was eligible for a promotion to GS-4. Subsequently, plaintiff asked Ford for a
promotion to GS-4. In July of 1982, Ford told plaintiff that he would consider
promoting her to a GS-4 in October. In early October, Ford refused to give her
the promotion, although he extended her temporary appointment for a year.
Later that month, after plaintiff helped out when someone went on vacation,
Ford said that he would file for the promotion. However, the following
Monday, he changed his mind and claimed that her typing was not acceptable
for a GS-4.

Plaintiff filed an Equal Employment Opportunity Commission ("EEOC")

complaint in February of 1983 after speaking with a counselor. Plaintiff
testified that after filing the complaint, the office environment became hostile
making it impossible to perform. In October of 1983, Ford decided not to renew
plaintiff's appointment. Denying that the EEOC complaint had any effect, Ford
stated that his decision was made because she still made typing mistakes, did
not follow instructions and was caustic with other employees.

After pursuing administrative remedies, plaintiff filed suit in the United States
District Court for the District of Columbia in April of 1985. She alleged
discrimination based on race and national origin in violation of Title VII of The
Civil Rights Act of 1964, as amended. The case was transferred to the District

of Maryland in June of 1985. Defendant's motion to dismiss was granted by the

district court and subsequently remanded by this court. 850 F.2d 689. Counsel
was appointed for plaintiff who filed an amended complaint on October 13,
1988.
6

The amended complaint claims unlawful refusal to promote based on

discriminatory treatment and disparate impact theories, discriminatory
termination and retaliatory termination. Pursuant to the parties' consent, the
case was assigned to proceed before a United States Magistrate Judge, who
denied defendant's motion for summary judgment and held a trial. The
magistrate found that plaintiff failed to prove that EEOCR's employment
decisions were motivated by a discriminatory purpose. Dissatisfied with the
magistrate judge's decision, plaintiff appeals to this court, asserting clear error.

Issue and Standard of Review

7

The question on appeal is whether iniquitous discrimination motivated HHS to

refuse to promote and to terminate the employment of McNairn.

The district court found that HHS did not discriminate against McNairn. As a
question of fact, that finding may be overturned only if we find it clearly
erroneous.2 We may only review the trial court's findings with great deference
especially when the trier of fact has based his decision in part on the credibility
of the witnesses.3

Refusal to Promote
1. Discriminatory Treatment
9

Appellant asserts that the district court clearly erred by finding that appellee's
refusal to promote McNairn was not motivated by a discriminatory purpose. To
prove such an allegation, the plaintiff must first establish a prima facie case of
discriminatory action. The United States Supreme Court first espoused the
elements required to show a prima facie case of unlawful employment
discrimination under Title VII in McDonnell Douglas Corp. v. Green.4 The
Court acknowledged that the prima facie test could be tailored to fit varying
fact situations.5 At trial, the magistrate judge applied a modified McDonnell
test to determine if McNairn had established a prima facie case of unlawful
discrimination. The test the magistrate judge applied required a showing that:
(1) plaintiff is a member of a protected group; (2) plaintiff applied for the
position in question; (3) plaintiff was qualified for the position; and (4)
plaintiff was rejected for the position under circumstances giving rise to an

inference of unlawful discrimination. We conclude that the test applied by the

magistrate judge was apt. 6
10

We also agree with the conclusion that a prima facie case of unlawful
discrimination was "minimally" established under the applied test. First,
McNairn came from African and Hispanic descent, both of which are protected
groups. Second, McNairn applied for the GS-4 position. Third, it is not
disputed that McNairn was eligible for the promotion to GS-4 position.
However, the last element is barely met. It requires that the circumstances
surrounding the rejection raise an inference of discrimination. The
discriminatory circumstances cited by the magistrate judge are that Director
Ford promised McNairn a promotion, then retracted his promise and that others
were not denied advancement in a similar manner. Albeit minimally, we agree
that this fact evidences a discriminatory purpose, adequate to raise an inference
of unlawful discrimination.

11

After the plaintiff establishes a prima facie case of unlawful employment

discrimination under Title VII, the burden shifts to the defendant to articulate a
legitimate non-discriminatory reason for not promoting the plaintiff.7 HHS
asserts that McNairn's work was inadequate to warrant promotion. Both
Director Marshall Ford, McNairn's supervisor, and Linda Snyder, plaintiff's
immediate supervisor, testified that McNairn performed marginally,
consistently made errors and had difficulty following instructions.
Consequently, the magistrate judge found that the defendant articulated and
supported a legitimate non-discriminatory reason for not promoting McNairn.
We see no evidence indicating that the magistrate judge's finding was clearly
erroneous. Hence, the burden of production shifts back to plaintiff to show that
the reason articulated by HHS was merely a pretext for discrimination.8

12

Appellant asserts a whole host of points to suggest that the reason articulated by
HHS for not promoting McNairn was pretextual. Appellant points out that
appellee did not present evidence indicating that McNairn's rate of error was
greater than comparable GS-4s at HHS. However, appellee does not assert that
McNairn's job performance was unsatisfactory just based on a high rate of
error. Appellee contends that McNairn's overall job performance was
unsatisfactory. This includes her inability to follow instructions and her caustic
work attitude in addition to her poor work product. Therefore, appellee's failure
to present raw data which shows that McNairn's rate of error was greater than
normal does not militate against the magistrate judge's finding of no pretext.

13

Appellant also asserts that testimony of Ivan King supports their contention that
appellee's reason for refusing to promote McNairn was pretextual. King, who

was second-in-command of the office, testified that he believed Ford

discriminated against McNairn and that her work was comparable to other GS4s. However, the magistrate judge noted that King testified that McNairn did
not do most of his typing, that McNairn was not under his direct supervision,
that he did not write McNairn's performance appraisal, and that McNairn was
not physically located near him. The magistrate judge as the trier of fact was
there to observe and weigh the credibility of the witnesses. Evidently, the
magistrate judge determined that Ford was in a better position than King to
evaluate McNairn's job performance. As an appellate court we are not
authorized to check the credibility determinations made by the trier of fact. 9 In
light of the evidence, we do not find clearly erroneous the magistrate judge's
finding that the reasons articulated by appellee were not a pretext for
discriminating against McNairn.
2. Disparate Impact
14

Appellant claims that HHS's use of subjective promotion criteria had a

disparate impact on the class of black and Hispanic employees. Specifically, of
all the HHS employees promoted to GS-4, 16% were black and 0% were
Hispanic, although of all the HHS employees at the GS-3 level, 23% were
black and 5% were Hispanic. Because McNairn is black and Hispanic, she
claims that she was affected by this disparate impact. Appellant asserts that the
magistrate judge erred by not addressing this claim of discrimination.

15

We conclude that the claim is meritless because the plaintiff failed to establish
a prima facie case of disparate impact. To establish a prima facie case of
disparate impact, plaintiff must show (1) that there is an underrepresentation of
the qualified members in a protected class promoted to the positions at issue
and (2) that specific elements of the employer's promotion criteria had a
significant disparate impact on the protected class.10

16

The first element of the prima facie case is not satisfied because assuming that
black and Hispanic GS-3s were underrepresented in the group of GS-3s
promoted to the level of GS-4, the plaintiff did not present evidence indicating
which of the black and Hispanic GS-3s were qualified to be promoted to the
GS-4 level. Furthermore, the second element is not satisfied because plaintiff
does not attempt to show that the subjective element of HHS promotion criteria
significantly affected qualified blacks' and Hispanics' chances to be promoted.
Because plaintiff's proof of disparate impact is woefully lacking in detail, the
finding that the refusal to promote McNairn was not the result of discrimination
is not clearly erroneous.

Discriminatory Termination
17

Appellant asserts that the district court clearly erred by finding that appellee's
termination of McNairn was not motivated by discrimination. A prima facie
case of discriminatory termination requires proof that: (1) plaintiff was a
member of a protected group; (2) plaintiff was terminated; (3) plaintiff was
qualified to remain in her position; and (4) the position remained open to
similarly qualified applicants after plaintiff's dismissal.11 The district court
correctly found that plaintiff established a prima facie case of discrimination.
Plaintiff was a member of a protected class, plaintiff was terminated although
she was eligible to retain her position, and the position remained open and
subsequently was filled by a white person.

18

HHS asserted at trial that McNairn had been viewed as a marginal employee in
the EEOCR since her arrival under the supervision of Ford in July of 1982, and
in sixteen months had not performed to the level to which Ford felt necessary to
extend her temporary appointment. The magistrate judge noted that the
subjective element to these employment decisions and the "perceived animus
between plaintiff and her supervisors" cloud the issue of the true motivation
behind plaintiff's termination. However, the magistrate judge found and we
agree that the reason given by the defendant for not renewing plaintiff's
appointment requires plaintiff ultimately to prove unlawful discriminatory
motivation.

19

Appellant asserts that the record does not support appellee's articulated reason
that McNairn was given time to improve her work quality and failed to do so.
On the contrary, the record does show that McNairn first worked for another
bureau of the FDA and was to be terminated. To give McNairn a last chance,
the EEOCR office hired her to a temporary position and provided her with 13 to
14 training courses. Unfortunately, McNairn's job performance and attitude
failed to improve.

20

Additionally, appellant asserts that Ford was not sufficiently trained to evaluate
job performance and actually questions the quality of Ford's decision. These
superficial arguments do not serve to accurately disparage the finding that
appellee's articulated reasons were not pretextual. Title VII does not require that
employment decisions be impeccable. It only frowns on employment decisions
that are based on "race, color, religion, sex, or national origin...." 12

21

Furthermore, appellant asserts that the magistrate judge placed undue reliance
on the assumption that equal employment officials are incapable of engaging in

discriminatory conduct. Although the basic assumption is alluring, we do not

find it to be a legally cognizable assumption.13 However, we do not conclude
that the magistrate judge placed sufficient reliance on the assumption to affect
her ultimate finding that appellee was not motivated by a discriminatory
purpose. Hence, we affirm the finding of the magistrate judge that no unlawful
discrimination occurred.
Retaliatory Termination
22

Appellant also claims that King fired her in retaliation for bringing this lawsuit
in violation of 42 U.S.C. Sec. 2000e-3(a). In order to establish a prima facie
case of retaliatory termination, plaintiff must prove: (1) that she engaged in
protected activity; (2) that the employer took adverse employment action
against her; and (3) a causal connection existed between the protected activity
and the adverse action. 14

23

The prima facie case was established at trial. First, appellant engaged in
protected activity by bringing the unlawful employment discrimination lawsuit.
Second, appellant was fired afterward. Third, it can be inferred that the
termination was triggered by the lawsuit. However, as in the discriminatory
termination count, defendant successfully rebutted the burden by explaining
that McNairn was fired because her job performance was unsatisfactory.

24

Consequently, plaintiff has the ultimate burden of showing pretext by proving

that the filing of the discrimination lawsuit was the "motivating part" in the
decision to terminate McNairn.15 We note that Ford took action against
McNairn at her next renewal period which was the most immediate, convenient
opportunity to do so after she filed her discrimination complaint. However, this
fact does not compel us to find differently than we did on the discriminatory
termination claim. We do not believe that plaintiff proved that filing the
discrimination complaint triggered the EEOCR to terminate her employment.
Instead, the evidence shows that plaintiff was terminated because of her
unsatisfactory job performance. Accordingly, the finding of the district court
was not clearly erroneous, and we affirm.

Conclusion
25

On the refusal to promote, discriminatory termination and retaliatory

termination counts, the district court found that plaintiff established the
requisite prima facie case of discrimination. However, on all three counts,
plaintiff failed to prove that HHS's justifications were merely pretextual. On the
discriminatory impact claim, the district court found that plaintiff failed to

establish a prima facie case of disparate impact. We find that these findings are
supported by the record evidence and are not clearly erroneous. Accordingly,
we affirm.
AFFIRMED

42 U.S.C. Sec. 2000e (1988)

Fed.R.Civ.P. 52(a)

"Findings of fact ... shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to judge the credibility
of the witnesses." Id

411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)

Id

The test set forth in Wright v. National Archives & Records Serv., 609 F.2d 702
(4th Cir.1979), is the more applicable prima facie test when a refusal to
promote claim is asserted in situations involving a specific vacancy or set of
vacancies that will be filled by a limited number of applicants
In such situations, to prove a prima facie case of unlawful discrimination
underlying a refusal to promote, a plaintiff must prove that: (1) she is a member
of a protected group; (2) she applied for and was qualified for a promotion to a
position to which promotions were being offered to persons of her
qualifications by her employer; (3) despite her qualifications, she was rejected;
and (4) after her rejection, the position remained available by promotion to
others of her qualifications. Id. at 714. However, this test is not applicable to
the situation at bar because the GS-4 position will not be filled by a limited
number of applicants. It is open to all applicants who meet the requisite
qualifications including approval by the supervisor.

Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct.
1089, 1094, 67 L.Ed.2d 207 (1981)

Id

Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84
L.Ed.2d 518 (1985)

10

Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 2125, 104
L.Ed.2d 733 (1989)

11

Williams v. Cerberonics, Inc., 871 F.2d 452, 455 (4th Cir.1989)

12

42 U.S.C. Sec. 2000e-2(a)(1)

13

See Parker v. Secretary, United States Dep't of Housing & Urban Dev., 891
F.2d 316, 322 (D.C.Cir.1989)

14

Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985)

15

Price Waterhouse v. Hopkins, 490 U.S. 228, 244, 109 S.Ct. 1775, 1787, 104
L.Ed.2d 268 (1989)